Punjab-Haryana High Court
Jalkaran Etc vs State Of Hy on 17 January, 2018
Bench: A. B. Chaudhari, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-No.128-DB OF 2003 (O&M)
DATE OF DECISION : 17th JANUARY, 2018
Jalkaran & another
.... Appellants
Versus
State of Haryana
.... Respondent
CRA-D-No.494-DBA OF 2003 (O&M)
State of Haryana
.... Appellant
Versus
Partap & others
.... Respondents
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
****
Present : Mr. Baljit K. Mann, Advocate
for the appellants in CRA-D-128-DB-2003.
Mr. Vivek Saini, Deputy Advocate General, Haryana
for respondent in CRA-D-128-DB-2003
for the appellant in CRA-D-494-DBA-2003
Mr. Bhuwnesh Lakhera, Advocate for
Mr. Sanjay Mittal, Advocate for the complainant.
****
A. B. CHAUDHARI, J. (ORAL)
1. The appellants-Jalkaran and Rajesh Kumar have filed appeal
bearing CRA-D-No.128-DB-2003, being aggrieved by judgment and
order dated 17.01.2003 passed by Additional District & Sessions, Judge
(Adhoc), Jhajjar in Sessions Case No.10/02.08.1999/12.12.2002, in case
FIR No.89 dated 06.03.1999 registered under Sections 302 read with
Sections 34 & 120B Indian Penal Code (IPC) and Section 25(1-B) of
Arms Act, by which the appellants Jalkaran and Rajesh Kumar were
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convicted for the offence punishable under Sections 302 read with
Section 34 IPC and Section 25 of Arms Act.
2. The State of Haryana has filed criminal appeal bearing
number CRA-D-No.494-DBA-2003 against Partap, Priyavart @ Chikku
and Sanjay against judgment and order dated 17.01.2003 in aforesaid
Sessions case by which the respondents Partap, Priyavart @ Chikku and
Sanjay were acquitted by the Additional District & Sessions, Judge
(Adhoc), Jhajjar.
Facts:
3. In brief the prosecution case is that Satyawan-the
complainant son of Pehlad Singh resident of Village Bamraula, District
Jhuajjar, lodged a report with the police station that his younger brother
Shiv Kumar had purchased land measuring 2 Killas from one Ramphal
s/o Chandgi Ram, resident of Village Kukrola about a year back. After
purchasing the said land he got installed a tube-well in the land and also
got constructed a tube-well kotha. All the accused persons were in
possession of the same land before its sale to him. The water of the tube-
well was not saline and therefore the brick kiln owners used to take water
from the tube-well. On 05.03.1999 at about 7.30 pm, Kalu Ram son of
Nanha Ram resident of Rajasthan, working in the brick kiln, came
towards the tube-well and saw a dead body lying on the dol of wheat crop
field on the road side. He told about it to Ramesh, the servant of Shiv
Kumar and Chander Bhan friend of Shiv Kumar resident of Village
Dighal, who were present at the tube-well. Both, Ramesh and Chander
Bhan, went to that place and saw the dead body lying. They identified
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the body as that of Shiv Kumar. They came to the complainant Satyawan
and informed him. The complainant accompanied by his elder brother
Mahender Singh went to the spot and saw the dead body with bullet
injuries. He suspected the accused persons as there was enmity between
them with regard to the civil suit regarding the land against the accused
persons pending before the learned Sessions Court, Jhajjar. He then went
to the police station and reported the matter. The police party arrived at
the spot and registered the FIR thereafter. The proceedings under Section
174 Cr. P. C. was conducted over the dead body and blood stained earth
was collected, sealed and one tiffin lying there was also taken in to
possession. Some other articles were also seized from the spot. The site
plan was prepared. The post-mortem examination was got conducted.
Investigation was undertaken by Om Parkash, Inspector and inquiries
were made about the accused persons in the village Kukrola. During
investigation Kashmiri Lal son of Hazari resident of Bamraula got his
statement recorded under Section 161 Cr.P.C. The police received a
secret information about the accused persons who had come in contact
with Zile Singh of village Davala. Zile Singh then appeared before the
Police officer along with accused Jalkaran and he was arrested. The
other accused persons were also arrested on 16.03.1999. Jalkaran Singh
was interrogated and he made his disclosure statement Exhibit-PT that he
has concealed the pistol and three cartridges in the kotha of his house.
The same was got recovered. Thereafter, Rajesh made disclosure
statement on 04.04.1999 Exhibit-PL that he kept concealed a pistol in the
area of village Kukrola. He also got it discovered vide Exhibit-P5.
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Thereafter, the final report was filed by the police and the trial was
committed to the Court of Sessions. The Sessions Court thereafter
conducted the trial. The prosecution examined number of witnesses and
finally convicted two appellants as stated above and acquitted the
remaining accused persons. Hence, these appeals by both the rival
parties.
Arguments:
4. Learned Counsel for the appellants-Jalkaran and Rajesh
Kumar vehemently argued that the trial Court itself rejected the evidence
of PW-4 Randhir Singh, the alleged star witness of the prosecution i.e.
the eye witness, for the reasons which are sound and no other view is
possible than the one taken by the learned Trial Court. She then
submitted that the said PW-4 was planted as eye witness by the police
and he appears to be a chance witness and his testimony is not truthful.
That is why the trial Court has rejected his testimony inspiring no
confidence. It was then contended that the trial Court having thus
rejected the evidence of star witness of the prosecution, has committed
error in relying upon the evidence of Zile Singh on the alleged extra-
judicial-confession. The evidence in the form of extra-judicial-
confession is a weak piece of evidence and that is the settled legal
position. Apart from that Zile Singh was related to the complainant and
therefore, his evidence was required to be rejected, he being interested
witness. That apart, Zile Singh was not a person of any high status that
Jalkaran could have approached him for compromise and made extra-
judicial-confession to him. At any rate, according to the counsel for the
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appellants, it was only Jalkaran who was said to have made extra-
judicial-confession and not Rajesh Kumar, the other appellant.
5. The learned counsel for the appellants then contended that
the trial Court has relied on recovery of the weapons from Jalkaran and
Rajesh Kumar, as incriminating evidence against them to support order
of conviction. The conviction cannot be recorded merely on the evidence
of recovery, though it is true that the Forensic Science Laboratory (FSL)
report shows that the bullet was fired from pistol which was recovered by
Jalkaran. At any rate, according to learned counsel for the appellants, the
case is the one of no evidence. At least, the benefit of doubt ought to
have been extended to the appellants. In support of her arguments
learned counsel for the appellants-Jalkaran and Rajesh Kumar cited seven
decisions of Apex Court namely in the cases of Chattar Singh & another
Vs. State of Haryana, 2008(4) RCR (Criminal) 133; S. Arul Raja Vs.
State of Tamil Nadu, 2010(3) RCR (Criminal) 918; Sunil Rai @ Paua
& others Vs. Union Territory, Chandigarh, 2011(3) RCR (Criminal)
636; Munna Kumar Upadhyaya @ Munna Upadhyaya Vs. State of A.P.
Tr. Pub. Prosecutor, 2012(2) RCR (Criminal) 962; Tejinder Singh @
Kaka Vs. State of Punjab, 2013(3) RCR (Criminal) 572 & State of
Punjab Vs. Jagga Singh Etc. 2015(2) RCR (Criminal) 262 and one
judgment of Division Bench of this Court in the case of Baljit Kaur &
another Vs. State of Punjab, 2017(2) Law Herald, 1738.
6. In support of the appeal preferred by the State of Haryana
i.e. CRA-D-No.494-DBA-2003, learned counsel for the State submitted
that the trial Court committed an error in acquitting the remaining
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accused persons namely Partap, Priyavart @ Chikku and Sanjay, though
there was evidence on record against them as well. The evidence in the
form of disclosure statement (Nishan Dehi), ought to have been believed
for convicting respondents-acquitted persons. He, therefore, prayed for
allowing of the appeal against acquittal bearing CRA-D-No.494-DBA-
2003.
Consideration:
7. We have heard learned counsel for the rival parties at length.
We have perused the entire evidence of the prosecution witnesses. We
have also gone through the scientific evidence in the form of FSL report.
8. We have seen the judgments cited by learned counsel for the
appellants Jalkaran and Rajesh Kumar. There can be no dispute about
the propositions stated in those judgments.
9. At the outset, we find that the trial Court rejected the
evidence of PW-4 Randhir Singh son of Deep Chand by giving the to
following reasons:
"xxx.... xxx.... xxx....But after the registration of
the Fir on the statement of Satyawan, Randhir
Singh cousin of the deceased came forward with
the version that he saw the accused from a very
close range and identified them when they were
leaving the spot after killing the deceased. His
statement was recorded by the police at 12.30
a.m. His version is, as already mentioned that he
had gone to his field and then at about 6.00 p.m.
he was going to the tubewell of Shiv Kumar his
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cousin for taking bath and that when he was just 1
½ killa away he heard gun shot and saw some
persons grappling with each other. Then he sat
down in the wheat crop and then heard four-five
more gun shots and then all the accused escaped
through the dol near the place of his hiding and so
he saw them and heard them saying that the man
has been killed. Then he silently came to his
house and went up stairs and laid himself on a cot
in the upper room. At 11.00 p.m. Ved Parkash
came to him after his duty and told him that Shiv
Kumar had been shot dead. Then he accompanied
him to the spot. He has repeated that version in
the witness box as PW4. But no part of his
statement inspire any confidence. It is all against
the human conduct and is a mere concoction. In
case he had seen the occurrence, the FIR would
have been got registered at his statement. He
remained frightened and speechless for about six
hours disclosing nothing to anybody even to his
brothers in the village. He did not disclose what
he saw even to his brother Ved Parkash when he
came to him at 11.00 p.m. with the bad news. He
accompanied him silently. Further he hide himself
without ascertaining who were grappling and
what was happening and even after the accused
had left the spot he did not got to the spot for
ascertaining what had happened and whether the
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person shot of was dead or alive when he could
easily guess that the person escaping were enemy
of Shiv Kumar. It is unbelievable. His going
towards the tubewell and the possession was in
dispute and there was no question of his going to
the tubewell for taking bath. There was no
passage from his land to the land of Shiv Kumar
and as alleged he was walking along the dols."
10. Since the trial Court rejected the evidence of PW-4 Randhir
Singh eye witness produced by the prosecution for above reasons, we
have carefully gone through his evidence, including his cross-
examination to find out whether he is a witness for the truth and whether
his evidence can be acted upon or not? He has deposed as under in his
evidence:
"On 5.3.1999 at about 6.00 p.m. I was going to
my fields from my house. Our field is situated
towards east of village Kukrola. I was proceeding
to the land of my cousin Shiv Kumar via fields.
When I reached 1 ½ killa away from the kothra of
Shiv Kumar, I heard the sound of gun shot from
the side of the road. I noticed four-five gun shots.
I, thereafter noticed accused Jalkaran, Rajesh,
Chikku @ Priyawart s/o Rohtas and Sanjay
running along the Dol of the field where I was
sitting. They were declaring that they had finished
the man. I returned home and went in the Chobara
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on the first floor of my house and lay on a cot. I
was frightened. At about 11.00 p.m. my brother
Ved Parkash returned from his job and he told
that Shiv Kumar had been murdered. I then went
to the spot alongwith Ved Parkash I saw the dead
body of Shiv Kumar lying on the place, from
where I had heard gun shots sound. In fact there
was a dispute over land between the deceased and
accused Jalkaran etc. Police recorded my
statement."
11. It is clear from his evidence that he is an eye witness who
saw the incident and also saw Jalkaran and Rajesh Kumar running along
the dol of the field after he heard the sound of gun shots, at a place
ultimately where the dead body of deceased Shiv Kumar was found. It is
true that he is the cousin of Shiv Kumar, the deceased and has a field
nearby the field of the deceased Shiv Kumar. Merely because he is
related to the deceased we would not reject his evidence since his
evidence is most natural. His field is situated near the field of the
deceased and therefore, his going to his field cannot be said to be without
any reason. He identified the accused persons who were running away
after committing the murder of Shiv Kumar. He has stated in his
evidence that he was frightened. When number of accused persons
known to him were seen by him committing murder with firearms, he
being alone was bound to get frightened and silently go unnoticed. The
reason given by the trial Court that he could not have gone upstairs to
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conceal himself and keep silent for some time defies all logic. The
reason is perverse. To repeat, the trial Court reasoned that if he had seen
the incident, he would have got his statement recorded and FIR
registered. But he remained frightened and speechless for about six
hours and disclosed nothing to anybody and even to his brother. We do
not agree with such a reason. It was most natural that this witness
frightened and became speechless for about six hours he having seen the
murder by the accused persons who were having pistols in their
possession. Since the accused persons were knowing this witness, there
is nothing unnatural that this witness was dumbfounded for about six
hours. At any rate, the delay in such circumstances of six hours in
making a disclosure, cannot result in the rejection of his testimony.
Further it is a fact that he had thereafter told about the incident to his
brother at about 11.00pm when he had come to him. Thus the first
person of his confidence was his brother Ved Parkash to whom he
disclosed and accompanied him to the spot. He thus got one more person
with him i.e. his brother and as such he became courageous to speak. We
therefore do not agree with the reason that he did not speak for about 6
hours about the murder and therefore his testimony is to be rejected.
12. We then find that the trial Court has stated that he had gone
to the tube-well though there was no question of going to tube-well for
going to take bath. We really wonder how and in the absence of any
cross-examination such an inference could be drawn. Whether he used to
go for bath or not are matters of facts and not the imagination. The trial
Court is not supposed to go by figment of imagination. We, therefore,
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find that both the reasons given by the trial Court can not stand the test of
judicial scrutiny and are perverse. We believe that PW-4 Randhir Singh
is an eye witness who is trustworthy.
13. The trial Court has then relied on the evidence of Zile Singh
PW-10. We have gone through the evidence of Zile Singh on the
question of extra-judicial-confession. The evidence of Zile Singh will
have to be understood along with evidence of recovery pursuant to the
disclosure statements made by the appellants. The submission that Zile
Singh was related to the complainant and that he was not a person of such
a status that the accused Jalkaran would go to him for effecting
compromise, does not appeal to us. The statement of Jalkaran at the
relevant time cannot be doubted in the manner sought to be projected by
the learned counsel for the appellant. On the contrary, we find that Zile
Singh being known to him and Jalkaran having faith in him that he would
help him in getting the compromise effected, approached him and made
the extra-judicial-confession. As stated earlier he also made recovery
pursuant to the disclosure statement. In that view of the matter, we do
not think that the evidence of Zile Singh can be said to be of no use. It is
true that the evidence in the form of extra-judicial-confession is a weak
piece of evidence but then it is not the law that the same should always
be rejected. In the present case, upon reading of the entire evidence, we
find that Jalkaran made the extra-judicial-confession to him and
accordingly he was arrested by the police after Jalkaran was produced by
Zile Singh. His police statement was eventually recorded. In that view
of the matter, we do not find anything wrong with the finding recorded
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by the trial Court in relying on the evidence of Zile Singh. We quote the
finding recorded by the trial Court in that behalf coupled with the finding
regarding the recovery of weapons from Jalkaran and Rajesh Kumar
together as under :
"xxx.... xxx.... xxx.... The next circumstance is
that the accused remained absconding from their
house. Jalkaran and Partap were arrested on
15.3.99 while the remaining accused were
arrested on 4th April. The prosecution version is
that Jalkaran approached Zile Singh and made
extra-judicial confession before him that they
committed the murder of Shiv Kumar and that he
being his relative compromise be got effected and
that he be produced before the police. It is correct
that he was relative of the complainant party, was
not having any approach with the police, had no
relation with any police officer there nor he was
frequent visitor to the police station, but still the
accused could approach him for compromise
being close relative of the complainant party. The
accused had been named in the FIR and the police
was after them. Their arrest was sure-so in the
circumstances the accused could approach him.
The accused Jalkaran and Rajesh also got
recovered one pistol each on the basis of their
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disclosure statements. Rajesh got recovered a
pistol of bore 12 while Jalkaran recovered a pistol
of .315 bore. Injuries of two dimensions are
available on the body of the deceased as is
evident from the post mortem report. Injury no.1
on the right side of face was having dimension of
6 cm x 4 cm and injury no.2 on the right side face
was 7 cm x 4 cm and its exit wound was 8 cm x 3
cm. The remaining injuries are of the dimensions
of 1x1 cm.2.5cm x 1.5 cm. 1x1 cm and 1.5 x 1.5
cm. The next injury is also of the same dimension
i.e. the entry wound is 1x1 cm. and exit wound is
1.5 x 1.5 cm. So it becomes evident that two
persons atleast participated in the occurrence and
used two different fire-arms. Both the pistols sent
to the Laboratory were proved to have been fires
through and were in working order. One bullet
was also recovered from the body of the deceased
and it was sent to the Laboratory along with the
weapons and in Laboratory examination it was
established that the bullet had been fired from the
pistol of .315 bore got recovered by Jalkaran and
from no other weapon even of the same bore,
caliber or make. So it is a clinching evidence that
Jalkaran fired shots at the deceased with the pistol
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he got recovered. However, no other bullet could
be recovered from the body as all other wounds
were through and through and so no such
evidence could be collected regarding the pistol
of 12 bore. But it is evident that two weapons
were used. So there remains no doubt regarding
the participation of Jalkaran and Rajesh in the
occurrence and having fired at the deceased n
account of which he died at the spot."
14. Insofar as the recovery of weapons is concerned, learned
counsel for the appellants argued that there was no evidence against
Rajesh Kumar in respect of FSL report. We find that insofar as Rajesh
Kumar, is concerned, he made recovery pursuant to the disclosure
statement and the trial Court has rightly found that the evidence
regarding recovery pursuant to the disclosure statement made by Jalkaran
and Rajesh Kumar, was liable to be believed and the same was
accordingly believed. We agree with the reasons given by the trial Court
above regarding extra-judicial-confession and the recovery made by both
of them.
15. The prosecution has clearly proved the motive. The motive
was that accused were in possession of land which the deceased Shiv
Kumar purchased leading to accused getting fully enraged. The learned
counsel for the appellants submitted that no record in respect of the civil
suit etc. was produced by the prosecution. That may be so but then the
fact about the possession of the land by the accused persons prior to its
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purchase by Shiv Kumar, is an admitted fact as is clear from the record.
The sole testimony of the complainant Satyawan and the other witnesses
also shows that the land in question was purchased by Shiv Kumar and
obviously then he wanted to have possession from accused. In answer to
the last but one question in statement under Section 313 Cr. P. C.,
accused Jalkaran also admitted about the pendency of civil litigation
between them. At any rate, the sole testimony of the witnesses about the
Shiv Kumar purchasing the land and then the land dispute arising with
the accused persons, has gone unchallenged in the cross-examination of
the concerned witness. There is no reason why the said evidence of
motive should not be believed. In the result we find that the prosecution
also successfully proved the motive to the crime in question. We,
therefore, find no merit in the appeal preferred by the appellants Jalkaran
and Rajesh Kumar and therefore we dismiss the same.
16. The submissions made by learned State counsel in the
appeal against acquittal CRA-D- No.494-DBA-2003, that the other
accused persons should have been also convicted namely Partap,
Priyavart @ Chikku and Sanjay, does not appeal to us. Insofar as these
accused persons are concerned, there is no evidence at all regarding any
recovery of weapons or as the case may be. The trial Court took the view
regarding acquittal by recording the following reasons:
"However, as regards the remaining accused there is
no evidence to how their complicity beyond
reasonable doubt. The body had been recovered on
the date of occurrence and any disclosure statement
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regarding pointing out the place or even pointing out
the place where the dead body was lying can be no
evidence against the remaining accused. They got
recovered nothing. Their disclosure statement and
Nishandehi of the place of occurrence can not come
within the ambit of Section 27 of the Evidence Act.
Jalkaran did not name any other person when he
made the extra-judicial-confession."
17. We agree with the above reasons and hold that there is no
merit in the appeal filed by the State of Haryana.
18. In the result, we make the following order:
ORDER
(i) CRA-D-No.128-DB OF 2003 and CRA-D-No.494-DBA-2003 are dismissed.
17th January, 2018 (A. B. CHAUDHARI)
'raj' JUDGE
(INDERJIT SINGH)
JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No
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